Employee who gave longer than contractual notice could not claim constructive dismissal

15th August 2014

An employee of more than 25 years' standing was on three months' notice. He brought a grievance but was not satisfied with the procedure and appeal, and resigned giving seven months' notice. He brought various claims, including for constructive dismissal.

There is a constructive dismissal when an employer has done something that is so fundamentally inconsistent with the employer/employee relationship (a 'repudiatory breach') that the employee is entitled to treat him or herself as dismissed.

The employer argued that the employee should be treated as having affirmed his contract of employment, because such a long notice period (during which he continued working and was paid substantial remuneration) was inconsistent with his claim for constructive dismissal. Rather, it was consistent only with the continued existence of his contract.

The Employment Appeal Tribunal agreed with the employer's argument and dismissed the employee's claim for constructive dismissal.

Recommendation

Employers should be clear whether employees claiming constructive dismissal, but who give longer notice than the minimum required under their contracts of employment, can be treated as affirming their contacts of employment by doing so, meaning their claim will fail.

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